Clements v. Texas Co.

• Decision Date: 03 February 1925
• Docket Number: (No. 8483.)
• Citation: 273 S.W. 993
• Parties: CLEMENTS et al. v. TEXAS CO. et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

273 S.W. 993

CLEMENTS et al. v. TEXAS CO. et al.^*

(No. 8483.)

Court of Civil Appeals of Texas. Galveston.

February 3, 1925.

Rehearing Denied April 16, 1925.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Brazoria County; W. N. Foster, Special Judge.

Trespass to try title by Mrs. Sallie J. Clements and others against the Texas Company and others. Judgment for defendant named and others, and plaintiffs and certain cross-defendants bring error. Affirmed.

A. R. Rucks and Elmer P. Stockwell, both of Angleton, for plaintiffs in error Underwood and others.

A. E. Masterson and C. D. Jessup, both of Angleton, J. D. Jackson, of Alvin, Gaines & Gaines and J. T. Loggins, all of Angleton, J. H. Underwood, of Columbia, Elmo Damon and G. W. Currier, of Boston, Mass., and Oliver J. Todd, of Beaumont, for other plaintiffs in error.

Louis J. Wilson, of Angleton, Robt. A. John, T. J. Lawhon, W. H. Wilson, and C. R. Wharton, all of Houston, and H. S. Garrett, of Fort Worth, for defendant in error Texas Co.

David M. Picton, Jr., and Stephen L. Pinckney, both of Houston (Phillips & Townsend, of Dallas, and C. B. Ames, of Oklahoma City, Okl., of counsel), for defendants in error Hogg Heirs.

SEARS, Special Chief Justice.

This suit was brought in trespass to try title involving 262.5 acres in the George Tenille league in Brazoria county. The pleadings involved also the question of damages, it being averred that 5,000,000 barrels of oil had been taken by the defendant from the land in controversy. By agreement, the question of damages was held in abeyance pending the outcome as to title.

Due to the amount involved, the case was vigorously contested at every step. The record is of appalling size. From the transcript and statement of facts, some 5,000 pages, and aided by briefs equal in volume, we shall attempt to set out only so much of the salient facts as to render intelligible our holding on the controlling questions in the case.

The plaintiffs represent five-sixths of the heirs of George Tenille, the original patentee, one of their claims being as such heirs. He was one of Austin's colonists, and the original grant of the headright of which the land in controversy is a part was in evidence. His sole heir was his son, George C. Tenille. George C. Tenille died in Gonzales county, and his will was offered for probate in that county in 1874. By its terms, Tom C. Tenille was constituted residuary devisee. There were specific bequests to plaintiffs, but the land in controversy went to Tom C. Tenille, if title had not passed out of his ancestor, and if the will was validly probated.

On June 26, 1907, Tom C. Tenille executed a deed conveying the land in controversy to one W. G. Liggett, and subsequently Liggett conveyed to plaintiffs, and, contending that the will was not validly probated and asserting that Liggett was an innocent purchaser, plaintiffs also claim under this conveyance. Tom Tenille had, however, two days prior thereto, conveyed the land to the Hogg heirs, one of the sets of defendants herein.

The defendants, the heirs of the late Governor Hogg, and the Texas Company, deraign title from George Tenille by virtue of an execution and sale under a recited judgment of the alcalde, Edwin Waller, rendered March 24, 1834, in a cause entitled Zeno Phillips v. George Tenille, and by numerous mesne conveyances not necessary to be set out here.

The defendants Hogg heirs and the Texas Company also relied on a deed from Tom C. Tenille to the Hogg heirs dated June 24, 1907, or two days prior to that, made by him to Liggett, and later acquired by plaintiffs. These defendants also relied on the several statutes of limitation, and sought to show a possession of the disputed tract running back to 1854.

Certain of the original parties defendant pleaded over against the Hogg heirs and the Texas Company, seeking to recover a four-thirtieths interest. It appears that the Hogg title under the sheriff's deed passed by mesne conveyances into one Mrs. Jane Kaiser. She died intestate in 1897, leaving five brothers and sisters as her heirs. One of these sisters was dead, and was survived by six children. On April 6, 1898, three of such children, Mrs. McFarland, Mrs. Taylor, and Mrs. Roberts, joined by their husbands pro forma, and by their brother, W. T. Williams, made a conveyance of their interest in the land in controversy to Mrs. Ellen Bell, who, in turn, conveyed to Governor Hogg. Mrs. McFarland and the children of Mrs. Roberts and Mrs. Taylor, who will be hereafter called cross-defendants for convenience, assailed the validity of this deed on the ground that the notary, W. T. Williams, being a party grantor in the instrument, was incapable of taking the acknowledgments of his sisters. Defendant Underwood also placed himself in the attitude of plaintiff as against the Hogg heirs and the Texas Company, seeking to enforce an instrument which, if of any legal effect at all, was an executory contract of sale.

George Tenille lived on the league granted him during the '30's. At various times between 1837 and 1847 he conveyed all of the league except the 2,000 acres acquired by Underwood, a part of which is the land here involved, and a tract called the Bonney tract. It is inferable from the fact that these deeds are executed by him in Brazoria county up until April 1842, that he lived in that county up until that time. Thereafter, the evidence locates him variously in Bastrop, Fayette, and De Witt counties.

By deed dated June 8, 1842, the sheriff of Brazoria county conveyed "1,000 acres of land off the lower corner of the George Tenille league, above and near the town of Columbia, and known as a part of the head-right of George Tenille" to one Ammon Underwood, under whom the defendants Hogg and the Texas Company deraign title. The deed recites the issuance of a writ of execution, "in favor of Zeno Phillips' Heirs v. George Tenille and Thomas K. Davis," its levy, advertisement, and sale.

By docket recitals, and by the recitals of a sworn petition, the existence of a judgment by the alcalde, Edwin Waller, rendered March 24, 1834, in favor of Zeno Phillips, against George Tenille, for the sum of $204 with interest from May 21, 1833, was shown. On November 9, 1837, George Tenille filed a suit for an injunction, in which he alleged that Zeno Phillips had recovered a judgment against him, describing the judgment as set out above; that such judgment was rendered on confession of counsel without his authorization, and without any notice to him; that upon said judgment the heirs of Zeno Phillips had caused an execution to issue out of the district court of the Republic; that Zeno Phillips was dead, and no execution could be issued in his name, but must be issued by his administrator; that the judgment, if well obtained, was by an alcalde under the Mexican government, and no execution could issue out of the courts of the Republic without giving him notice to appear at a certain time and place, "and show cause why the judgment should not be revived against him in the district court, and, if no good cause was shown, then and not until then could a judgment be rendered and an execution issued against your orator." Tenille therefore prayed for an injunction, and swore to the petition. An answer was filed traversing this petition.

Only this further docket entry appears:

"No. 62. Geo. Tenille v. Heirs of Zeno Phillips. Injunction. Injunction dissolved at cost of Tenille."

The execution was lost, but the execution docket shows the issuance of the execution Tenille sought to enjoin; and it also shows by its reference to "primary costs," that this was the alcalde's judgment.

There were eight executions shown, either the originals or the records thereof in the execution docket. Under the third, which the execution dockets show was issued July 30, 1839, there was a sale, the docket return showing "land sold on 12 months' credit to G. Tenille and his bond is herewith returned." The 12-month bond referred to is lost, but other evidence shows beyond question that T. K. Davis was the surety on said bond.

The execution referred to by the sheriff in his deed to Ammon Underwood has been lost, but the execution docket shows the issuance of an execution on that date. It is numbered 62:

"Zeno Phillips Heirs v. George Tenille, etc. Amt. of bond (italics ours) 339.97 costs 2.00."

It shows issuance to the sheriff of Brazoria county. On the execution docket the sheriff's return reads:

"This execution is entitled to a credit of two hundred twenty two 90/100 dollars on principal & costs paid to date."

There were other executions issued for the deficiency, but it is not material to set them out in any detail. It is only necessary to say that they show that Ammon Underwood subsequently acquired the unpaid portion of the judgment of Phillips v. Tenille.

Ammon Underwood, the purchaser of this land at the sheriff's sale, sold to one Alsworth, on January 1, 1854, 345 acres in a rectangle out of the southeast corner of the Tenille league, which includes the land in controversy. On the same day Alsworth acquired by deed 289 acres out of the Bell headright, adjoining the above tract on the south.

Alsworth went into possession, almost at the time, of the contiguous tracts. His son, still living at the time of the trial, testified without contradiction as to the building of houses, slaves' quarters, etc. All the improvement was on the Bell headright portion of the tract, except a field was inclosed by a hedge, portions of which are still standing, which comprehend some 3 acres of the land in the Tenille league, held by Alsworth under his deed from Underwood. From that date to the time of trial there was possession, more or less continuous, and its extent was sometimes augmented and sometimes restricted.

From Alsworth, by some 22 mesne conveyances, this title vested in the Hogg heirs and Texas Company. In addition, there were a number of mortgages,...